Criminal Procedure in the Church Courts of the Fifteenth Century As Illustrated by the Trial of Gilles de Rais

The inquisitorial procedure in the investigation of crimes, which developed in the Church in the thirteenth century, grew out of the criminal procedure of the later Roman Empire, modified by the special conditions of the times as well as by more primitive Germanic ideas. The older ecclesiastical procedure, the accusatory, likewise based on the Roman law, had left the entire initiative in prosecution to the private accuser, who presented himself in the character of a plaintiff, formulated the accusation, and produced the proofs exactly as he would have done in a civil case, except that he was compelled to accept the lex talionis—that is, in case he was unable to support his charges with a reasonable show of evidence, the accuser agreed to submit to the same punishment as would have been inflicted on the accused if the charges had been proved. The obvious objections to this procedure were that the church authorities had no means of prosecuting crime on their own initiative and that the dangers surrounding an unsuccessful accuser, together with the various conditions that had to be fulfilled before a private person could qualify as an accuser in any case, made adequate private prosecution impossible. The accusatory system, it is true, had been modified by the introduction of denunciation, where a denouncer takes the place of the accuser, with this difference, that he is not compelled to subscribe to the talio nor is he compelled to possess all the qualifications of a legal accuser. This tended to encourage private prosecution of crimes, but the advantage was more than balanced by the privilege enjoyed by the accused of clearing himself of the charges by purgation, either the oath or the ordeal.

page 31 note 1 The documents in the case were published some thirty years ago by Moulde, de as an appendix to the Abbé Bosard's Gilles de Rais, dit Barbe-Bleue, Paris, 1886. The learned Abbé is fully persuaded as to the reliability of the evidence and the guilt of the Marshal de Rais.See the discussion of the trial in Lea, , History of the Inquisition, in the Middle Ages.